On Legal Obligations and Golf-Gate

Oran Doyle, Trinity  College Dublin

 

Introduction

Considerable public controversy has attended the revelation of the Oireachtas Golf Society event held in Clifden last week. Questions have arisen over whether individuals involved broke the law or public health guidelines. In this blogpost, I outline the most relevant legal obligations under three headings: the holding of events, arriving from a foreign country, travelling to and from locked down counties. This is not intended as an assessment of whether specified individuals have broken the law. Not all facts are known and such an assessment should only, if at all, be made by a court following due process. Nor do I mean to suggest that the expectations of public officials should be limited to strict compliance with the law. Nevertheless, compliance with legal obligations is particularly important; this analysis may assist public debate in that regard.

 

Holding events

SI 206/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No.3) Regulations 2020 has applied since 29 June 2020. Regulation 5 makes it a criminal offence to organise or cause to be organised, an indoor event for cultural, entertainment, recreational, sporting, social, community or educational purposes unless the maximum number of persons attending, or proposed to attend, the event does not exceed 50 persons. The organiser is not criminally liable if she took all reasonable steps to ensure that the number attending did not exceed 50. Section 31A(16) of the Health Act 1947 defines event as ‘a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons…’

Regulation 5 applies to people who organise events or cause them to be organised. If I were to organise an academic conference, for instance, I would potentially be open to criminal liability if the conference were held inside and more than 50 people attended, even if they distributed themselves between parallel sessions. Anybody who helped me to organise the conference might also be criminally liable, either under Regulation 5 itself or as an accessory. But it is not—at the time of writing—a criminal offence to attend an event.

 

Arriving from abroad

I have already covered on this blog the limited legal obligations that apply to those who arrive from abroad. The only legal obligations on international passengers arriving from non-green list countries are to provide, confirm, and update information about where they will be or are residing for 14 days after arrival. There is no legal obligation to restrict movements. If they change their place of residence or contact details, they must make reasonable efforts to provide this updated information in writing. Failure to do so is a criminal offence. *The passenger locator form informs international arrivals that if any information provided in the form changes in the next 14 days they are required to send an email with their complete and update information to passengerlocatorform@plf.ie.

 

Travelling to and from locked down counties

Regulation 4 of SI 295/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (Relevant Counties) Regulations 2020 applied a number of restrictions to the counties of Laois, Offaly, and Kildare between 8 and 23 August. SI 315/2020 subsequently disapplied the Regulations to Laois and Offaly but extended the Regulations until 7 September in respect of Kildare.

Regulation 4 prohibits people travelling to or from an affected county—other than to pass through without stopping—without a reasonable excuse. Regulation 4 provides a non-exhaustive list of reasonable excuses, which includes travelling in order to ‘work, comply with a contract of employment or contract for services, or otherwise engage in work or employment.’ As we have discussed before in this blog in a similar context, it is difficult to gauge what other reasons might qualify as ‘reasonable excuses’. On the one hand, it is arguable that something close to a listed excuse should, by analogy, also be a reasonable excuse. On the other hand, it is arguable that the purpose of the provision is to stipulate somewhat arbitrary limits on movement that allow people to coordinate in a collective effort; if that is correct, it would not be a reasonable excuse to travel for the purpose of something that is very similar to yet different from one of the listed reasonable excuses.

Regulation 4 is not deemed to be a penal provision, meaning that breach of Regulation 4 is not a criminal offence and that the gardaí do not have any legal power to direct compliance with the terms of Regulation 4.

*Amended 1 September 2020 to include reference to this provision in the passenger locator form as the means of updating the passenger's details. 

 

Oran Doyle is professor in law in Trinity College Dublin and director of the COVID-19 Law and Human Rights Observatory.

 

Suggested citation: Oran  Doyle, ‘On Legal Obligations and Golf-Gate’ COVID-19 Law and Human Rights Observatory (28 August 2020) available at https://tcdlaw.blogspot.com/2020/08/on-legal-obligations-and-golf-gate.html

Ethics and Vaccine Development

Linda Hogan, Trinity College Dublin

We have all seen the devastation that COVID-19 has wrought on lives and livelihoods, and while the extreme lockdown measures have eased in many jurisdictions, the medium-term challenges of living with the virus are only now being properly understood.  The complexities involved in balancing individual autonomy with the common good, or public health with economic wellbeing are debated daily across all media platforms.  The greatest hope for the resumption of social, cultural and economic activity lies in the development of an effective vaccine and the commitment to deliver it to populations across the world.  

Hope that an effective and safe vaccine will soon be developed is high and the public appetite for up-to-date knowledge about progress is strong.  In addition to the technical updates in scientific journals, more popular venues, such as the Guardian and the New York Times keep the public informed about the various vaccine candidates (135+) and their relative stages of development from the pre-clinical stage to approval.  Rarely has scientific investigation and discovery been conducted under such public scrutiny or in such a contested political climate.   In this context of heightened interest and pressure for success, ethics has a critical role to play.  Moreover, when understood as a partner of the scientific disciplines it can assist by assuring the integrity of the scientific process, building confidence in the safety and efficacy of the vaccine and ultimately promoting public trust in science.

COVID-19 vaccine development involves research on human subjects, a field that is already carefully regulated according to scientific, medical and ethical principles.  The 1964 Declaration of Helsinki (updated 2013) and in Europe the 1997 Oviedo Convention map out the core requirements for ethical research on human subjects.  Respect for the individual frames the entire approach, requiring the full and informed consent of participants and the opportunity to opt out at any stage. The Declaration also insists on the primacy of the subject’s health and welfare, even over scientific advances, as well as on protections of vulnerable subjects.  The Oviedo Convention, whose formal title is the Convention on Human Rights and Biomedicine, is legally binding on its signatories and specifies even more clearly the practical implications of protecting human dignity, without discrimination in biomedical research. 

There is now a strongly embedded culture of ethical biomedical research leading to therapeutic interventions, including vaccines, and this is the context in which COVID-19 vaccine development takes place.  However, the relentless pace of COVID infections and deaths has created pressure to shorten the timeframe for vaccine development, through the use of challenge trials, namely trials that deliberately infect healthy subjects with COVID-19 after giving them vaccine candidates.  Challenge trials are controversial, though not unusual in the history of drug and vaccine development.  They often used prisoners, psychiatric patients, people living in poverty, that is, individuals from whom consent could be obtained because of their vulnerability.  Indeed, this was not unique to scientific research but rather was part and parcel of a more general societal disregard for these populations.  However, there are now strong protections for vulnerable subjects so this risk is mitigated to a certain extent, although Jill Fisher’s Adverse Events: Race, Inequality and the Testing of New Pharmaceuticals tells a more sobering tale.

Therefore, accepting that vulnerable subjects would be excluded, is it morally acceptable to infect healthy, willing subjects with a potentially deadly virus for which there is no treatment?   There are strong arguments against these trials.  There is significant risk of harm or death. The beneficient outcome of an effective vaccine may be unrealized. Genuine, free consent may not be possible, particularly if there is societal pressure for altruism, even extreme altruism, as proposed by Julian Savulescu and Dominic Wilkinson. Notwithstanding these difficulties, it is possible to construct an ethical framework for challenge trials in specific and limited circumstances.  Indeed the World Health Organisation has already published scientific and ethical criteria that would underpin ethically acceptable challenge trials for COVID-19 vaccines and has more recently published a roadmap for their implementation.  In addition to the high scientific bar, the WHO guidelines also map out an elevated threshold of independent ethical and public review.  This requirement incorporates the principles of PPI (public patient involvement) in the design as well as the implementation of the trials, thereby enhancing the agency of volunteer participants.  The WHO guidelines require participants to be young and in good health, thus excluding the elderly with altruistic motives who may feel societal pressure to participate.  They also include rigorous assessment of the informed consent process as well as the obligation to provide excellent medical care to participants.  Although the WHO has not, as yet, endorsed the use of challenge trials for COVID-19 vaccine candidates, the guidelines create a robust roadmap for the ethical use of challenge trials in these unique circumstances.

Vaccine development is laden with scientific and ethical challenges, and these challenges are amplified in the fraught and contested political climate of 2020.  Nonetheless we are presented with a unique opportunity to demonstrate that scientific advancement and ethical research are partners, not rivals, in the search for a safe and effective vaccine for COVID-19.

Linda Hogan is Professor of Ecumenics, Trinity College, Dublin.

Suggested citation: Linda Hogan, ‘Ethics and Vaccine Development’ COVID-19 Law and Human Rights Observatory Blog (25 August 2020)  https://tcdlaw.blogspot.com/2020/08/ethics-and-vaccine-development.html

The Advent of a Covid-19 Legal Regime for Virtual AGMs: A New Vista of Technological Corporate Accountability to Shareholders

Deirdre Ahern, Trinity College Dublin

 

Introduction

Companies’ annual general meetings (‘AGMs’) function as an important tool of shareholder accountability. One of the challenges companies around the globe have been grappling with is how to hold AGMs while Covid-19 restrictions are in place while also respecting shareholder rights of participation in so far as possible. However, for Irish companies whose constitutions did not provide for electronic meetings, this has proven difficult to navigate for the 2020 AGM season, leading both to companies postponing AGMs and to AGMs being held behind closed doors. These were not ideal options but understandable given that the legal environment was not adaptable enough to provide solutions that would legitimise companies conducting online AGMs.

Following calls by stakeholders, including the Institute of Directors, for legislation to put the legality of virtual AGMS beyond doubt, the Department of Business, Enterprise and Innovation published Heads of a Bill in July. The Bill moved expeditiously through the Houses of the Oireachtas and the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 was signed into law on 1 August 2020. This emergency legislation functions as a temporary enabling piece of legislation providing stopgap measures to provide sufficient flexibility to Irish companies around holding AGMs while social distancing measures are in place.

 

The Challenge of Holding AGMs with Social Distancing Protocols

In these times where minimising the risk of the spread of Covid-19 is paramount, physical AGMs where shareholders attend give rise to social distance challenges and risks. Before the enactment of this legislation, the ability to appoint proxies to attend and vote and speak on shareholders was a solution, but an inadequate one (and one not to be encouraged on public health grounds). Appointment of a proxy who can vote on a shareholder’s behalf does not replicate the full experience of attendance in person at AGM by a shareholder or remote attendance.

The temporary addition by the 2020 Act of relevant provisions to the Companies Act 2014 will tackle the pressing problem of companies not having provided in their Constitution for the electronic holding of AGMs with remote attendance by company shareholders. The commercial community now has a blueprint for conducting virtual meetings. Notice of an electronically held company meeting will need to specify the methodology of participation (the electronic platform to be used for the meeting) instead of the usual specification of the place of the meeting. This will also ensure that formal quorum requirements for a valid meeting are satisfied without the need for physical presence.

 

Shareholder Democracy in the New Era of Virtual AGMs

One of the biggest issues with use of electronic platforms for AGMs is around whether sufficient means of participation are provided. Earlier this year a High Court challenge was initiated against the Grafton Group plc by a shareholder alleging infringement of his rights as a shareholder in relation to the holding of a closed AGM meaning that he was only being allowed to listen in. An interim injunction was refused in this case.

The Companies (Miscellaneous Provisions) (Covid-10) Act 2020 is complemented by a draft Statutory Instrument, the Companies Act 2014 (General Meetings) Regulations 2020 which upon its adoption will provide further clarification on the operation of virtual AGMs. In particular, this draft statutory instrument usefully indicates that notice of AGM provided to shareholders must provide advance details on procedures for questions and comments from attendees to be communicated as well as on voting mechanisms.

Greater clarity around what shareholders can expect has now been provided. The relevant new legislative provisions contained in the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 contemplate participation by audio and audio-visual means. On this front, it is interesting that these new legislative provisions indicate that AGMs may be held entirely by electronic means provided that shareholders are given “a reasonable opportunity to participate.” From a shareholder democracy point of view, much hinges on this. This would presumably mean a requirement for a two-way audio facility to be provided to shareholders, not merely a one way audio listening facility.

A particular issue with virtual AGMs arises around submission of questions by live chat (as well as prior submission in writing of questions by shareholders), and whether all such questions must be answered at the virtual AGM. The financial media has reported how during the Covid-19 crisis shareholders participating in some virtual AGMS have alleged that they could only listen to proceedings, were unable to ask questions of company management, or that their submitted questions were ignored during the AGM proceedings. It may certainly be the case that time precludes a board from answering all submitted questions at an AGM and that for questions posed in a live chat facility, boards may exercise some discretion in choosing which to answer.

Of interest to this vista is the potential for technology in the form of the chat function on the electronic platform for an AGM to fundamentally alter and transform the nature of the discourse between the shareholder organ and the board of directors. In place of orderly submission of prior written formal questions and observations on select matters, one can imagine that rapid fire background commentary among shareholder attendees could potentially punctuate AGMs where functionality is enabled that permits participants to send messages to all virtual attendees.

 

Conclusion

While many companies will already have wrestled with the challenges to holding their AGM presented by COVID-19, the clarity provided by the new legislation will be welcomed by companies planning their 2020 AGMS. Electronic AGMs give a more inclusive option than closed AGMs even if some retail shareholders may not feel comfortable using electronic platforms. The impact is of course likely to be more keenly felt on larger private companies and PLCs as private limited companies and single member companies already have an option to choose not to hold AGMS.

AGMs have been booted from the fustiness of the nineteenth century into the fourth industrial revolution. How shareholders will leverage available technology to attend AGMs and use their voice to ask questions and pass comment in new ways and how skilfully this potentiality will be managed by company boards remains to be seen in this new era of electronic shareholder accountability.

 

Deirdre Ahern is Director of Technologies, Law and Society Research Group, School of Law, Trinity College Dublin.

 

Suggested citation: Deirdre Ahern, ‘The Advent of a Covid-19 Legal Regime for Virtual AGMs: A New Vista of Technological Corporate Accountability to Shareholders’ COVID-19 Law and Human Rights Observatory Blog (13 August 2020) https://tcdlaw.blogspot.com/2020/08/the-advent-of-covid-19-legal-regime-for.html

Direct provision and COVID19

© Patricia Brazil. “End direct provision” graffiti that appeared along the Royal Canal in April 2020.

 

Patricia Brazil, Trinity College Dublin

Introduction

November 2019 marked the 20^th anniversary of the introduction of the direct provision system in Ireland. During that time criticism has been levelled at conditions in some direct provision centres, the length of time spent by some people living in direct provision and the impact on both the mental and physical health of those people. The McMahon Report in 2015 made a number of recommendations for reform of the direct provision system including in relation to living conditions in designated centres, improvements in supports available for protection applicants and changes to the existing determination process. Two high profile cases in recent years also impacted on the direct provision system: the High Court decision in CA v Minister for Justice [2014] IEHC 432 led to the introduction of an independent complaints mechanism for persons living in direct provision, while the decision of the Supreme Court in NHV v Minister for Justice [2017] IESC 35 struck down the absolute prohibition on the right to work for asylum seekers and ultimately led to the State’s decision to opt into the Recast Reception Conditions Directive.

Despite some improvements to the direct provision system as a result of these developments, a report by NASC in 2017 highlighted that not all of the McMahon recommendations were implemented, including the introduction of vulnerability assessments, measures to address the backlog in processing protection applications and improvements in physical conditions in some direct provision centres. The Ombudsman’s Annual Report for 2019 noted a number of complaints related to the use of emergency accommodation as part of the direct provision system, sometimes in remote locations with limited access to services and supports.

Direct provision and the pandemic

As of March 2020, there were approximately 7,400 people living in direct provision and emergency accommodation in Ireland. Concerns were quickly expressed about the impact of the pandemic on those living in direct provision, including the ability to maintain social distancing guidelines in light of the sometimes overcrowded living conditions. Direct provision was described by one infectious disease specialist as a “powder keg” for COVID19,  with calls from NGOs including the Irish Refugee Council to move people in at-risk categories to alternative locations in order to enable self-isolation and cocooning. While the HSE extended access to temporary accommodation for healthcare workers living in direct provision, and the Department of Justice introduced a number of measures in light of the pandemic including off-site self-isolation facilities, MASI (Movement of Asylum Seekers in Ireland) issued a statement criticising the Department’s response on the basis that the measures “[did] not adequately address the situation of asylum seekers having difficulty observing social distancing.”

The Skellig Star

These concerns were brought into sharp relief when it emerged in April 2020 that a number of residents at the Skellig Star Hotel in Cahirsiveen, a recently opened direct provision facility, had tested positive for COVID19. There were reports that residents at the Skellig Star were being unlawfully deprived of their liberty, although the Department of Justice insisted that the doors were not locked and that residents were merely advised to adhere to HSE guidelines regarding self-isolation for the duration of the quarantine period. Other complaints raised included inadequate cleaning and sanitation protocols, lack of social distancing in relation to communal meals and the lack of Garda vetting for some staff prior to the opening of the centre. There have been calls for an inquiry into the decision to transfer over 100 asylum seekers to the Skellig Star in the midst of the pandemic and the lack of consultation with the local community around the opening of the centre. At the end of July, up to 30 residents at the Skellig Star began a hunger strike in protest at conditions there. In response, Minister for Justice Helen McEntee announced the closure of the centre on a phased basis within the next few months.

However, reports have since emerged of further outbreaks in other direct provision centres. On 10 August 2020 the Irish Refugee Council published a report entitled “Powerless”: Experiences of Direct Provision During the Covid-19 Pandemic, which reported that 50% of respondents were unable to socially distance themselves from other residents during the pandemic and 42% shared a bedroom with a non-family member. As the CEO of the IRC Nick Henderson commented on the release of the report, “Until and unless single or household occupancy accommodation is provided, Direct Provision will remain vulnerable to outbreaks.”

Pandemic Unemployment Payment

There was also criticism of the exclusion of asylum seekers who had been in employment from the Covid19 Pandemic Unemployment Payment Scheme. Although this payment had initially been granted to some asylum seekers who were unable to work because of the pandemic, the Department of Employment Affairs and Social Protection subsequently decided that asylum seekers living in direct provision were not eligible for the CPUP of €350 as their bed and board was provided and they were eligible for the direct provision allowance of €38.80. The Irish Human Rights and Equality Commission has expressed concern about the exclusion of asylum seekers from the CPUP scheme and Dr Liam Thornton has queried the lawfulness of this exclusion on a number of grounds. In a speech on 3 August 2020, Taoiseach Micheál Martin announced a reversal of the policy excluding people living in direct provision from the payment, stating: “Following reports that there was an issue with people in Direct Provision settings being reluctant to come forward for tests because of fear of losing income, we have decided that, lest there be any doubt, Direct Provision residents will be treated the same as any other citizen in terms of social protection supports when it comes to Covid-19.”

Recent developments

On 5 June 2020, as the Government confirmed that Ireland was on course to move to phase 2 of the roadmap for easing the COVID-19 restrictions, the Expert Group on the Provision of Support, including Accommodation, to Persons in the International Protection Process  chaired by Dr Catherine Day delivered a briefing note on its work to date. According to the Irish Times, the group said “the coronavirus pandemic has exposed the ‘unsuitability’ of the current system” and made a number of recommendations that could be introduced immediately to improve the direct provision system. The Minister for Justice welcomed the briefing note and indicated that he had asked the Secretary General to undertake a review of the Department’s “action on direct provision in the early stages of the pandemic, with particular reference to opening centres such as the one in Cahersiveen, to inform our actions in any subsequent phases. To ensure it is done quickly as possible, this review will be conducted internally with HSE input/involvement. We will seek external expert input on it when it is near completion.”

Conclusion

The Programme for Government agreed in June 2020 between Fianna Fáil, Fine Gael and the Green Party includes a commitment to ending the direct provision system and replacing it with “a new International Protection accommodation policy, centred on a not-for-profit approach.” Responsibility for direct provision has transferred from the Department of Justice to the Department of Children, Disability, Equality and Integration under Minister Roderic O’Gorman, who has described this pledge as “a key priority” and committed to moving people out of emergency hotel and B&B accommodation. A Government White Paper is to be published by the end of the year, which will take into account the report of the Day Group which is due to be published in September 2020. The outcome of the review by the Secretary General of the Department of Justice on its handling of the early stages of the pandemic is awaited, as is a proposed investigation by the Ombudsman into complaints by residents of the Skellig Star. As noted in the Irish Times editorial on 21 July 2020 “At no point since direct provision was established in 2000 have conditions been more propitious for its dismantling.”

Patricia Brazil is the Averil Deverill Lecturer in Law at Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Patricia Brazil, 'Direct provision and COVID19' COVID-19 Law and Human Rights Observatory Blog (31July 2020) https://tcdlaw.blogspot.com/2020/07/direct-provision-and-covid19.html

Return to home page of the COVID-19 Law and Human Rights Observatory.

Freedom in the Pandemic: Seatbelts, Speed Limits, and Smoking Bans

Alan Eustace, Trinity College Dublin

Alastair Richardson, Inns of Court College of Advocacy

 

In an article reproduced on this blog, Les Green discussed the problem of ‘free riders’ in this pandemic. This post argues that the problem with non-maskers is not really about free-riding, but about the risks they pose to other people. To show this, it will compare the safety measures introduced to deal with the Covid-19 pandemic with other common public safety measures.

 

We start with two assumptions. First, most people do not want to catch Covid-19. However, some people underestimate (a) the likelihood of catching the virus if they do not follow safety measures, and (b) the harm catching the virus causes. This harm has two elements: (i) the harm of illness to them, and (ii) the risk of passing the virus on to someone else. This leads to our second assumption: most people do not want to spread the virus either (as Prof Green puts it, ‘Most people care about some other people’). But again, some people wrongly underestimate the likelihood that they already have the virus and might transmit it to others, particularly because (a) Covid-19 may be transmitted while an infected person is asymptomatic, and (b) some symptoms of Covid-19 are easily confused with more trivial health complaints.

 

So, the ‘free rider’ during this pandemic is the person who wants to live without catching the virus, but also without taking the safety precautions necessary to prevent the virus spreading through the community. In other words, they are free-riding on the fact other people are taking safety precautions to stop the virus spreading to them.

 

At first glance, this does seem to fit with Prof Green’s examples, in particular the ‘anti-vaxxer’. If someone lives in a society where everyone else has been inoculated against a particular transmissible disease, he does not need a vaccine himself (because there is nobody he could catch the disease from). As Nicos Stavropoulos discussed in his response to Prof Green, we rely on this ‘herd immunity’ to protect people who, for whatever reason, cannot be vaccinated: so sometimes, we think free-riding is good. If we want to criticise the non-masker, we need to explain why it is bad for him to free-ride, or think of another ground on which to do so.

 

Our answer lies in a crucial difference between the ‘anti-vaxxer’ and the ‘non-masker’: a vaccine protects someone from a disease so long as he has the vaccine, even if he is the only person with a vaccine. This is why we get vaccines against certain diseases before travelling to countries where those diseases are widespread; in the land of the blind, the one-eyed man is king. In this respect, a vaccine is like a seatbelt. If someone is in a car crash, it does not matter if the other driver is wearing a seatbelt for the effect his seatbelt has on protecting him. This is not true of masks: a mask prevents someone spreading the virus to others, but has very little effect on whether he catches the virus if nobody else is wearing one.

 

A mask is more like a speed limit. Obliging someone to drive slowly probably does help keep him safe, but in general we think the real problem with speeding drivers is that they might hurt other people. We think (perhaps unfairly) that if someone has an accident while speeding, they ‘deserved it’ – but we feel sorry for the pedestrian, cyclist, or law-abiding driver who is hit by the speeding driver, and it is to protect them that we have speed limits.

 

If the non-masker is like the fast driver, it might be difficult to convince him he should wear a mask for his own protection. He might feel that the risk of catching the virus, like that of dying in a car accident, is one he wishes to run for the ‘freedom’ that going unmasked or driving fast brings him. To oblige him to wear a mask or drive slowly for his own protection seems a bit paternalistic, and in general it is harder (though not impossible) to justify legal obligations on that basis. It is also difficult to make the argument that to the extent he is free-riding on the efforts of others to suppress the virus, that is prima facie a reason to oblige him to contribute to that effort, particularly if he is willing to risk catching the virus himself (ie, lose the benefit he has obtained through free-riding).

 

However, it is easier to justify the restrictions on the basis that mask requirements (like speed limits) are not primarily intended to protect the wearer (or driver), but to protect others. In this respect, they are like the ban on smoking indoors in premises open to the public. We do not prohibit smoking indoors to protect smokers – we do it to protect non-smokers from second-hand smoke. We are less concerned about the impact of smoking on smokers, than that non-smokers might develop lung cancer because their fellow customers smoke.

 

We could not simply leave it up to non-smokers to protect themselves. Non-smokers are already trying to protect themselves from lung cancer, by not smoking. We could hardly say to them they should not go to pubs where other people might be smoking, because that would require they severely curtail their own freedom in order to protect their health. Crucially for present purposes, we also could not say to the non-smoker that he should wear a mask around people who smoke – because masks do not adequately protect the wearer from second-hand smoke. The risk of harm arises from other people exhaling smoke near him, whether he is wearing a mask or not. The only way to stop that harm is to restrict the extent to which people can exhale smoke near him.

 

The risk to someone of harm from Covid-19 arises from other people exhaling droplets with the virus in them near him, whether he is wearing a mask or not. The only way to stop that harm is to restrict the extent to which people can exhale droplets near him – by obliging them to wear masks. Nobody thinks that people who actually have Covid-19 should be free to wander about as they please, go to pubs and concerts, never wear a mask, etc. We don’t worry very much about this, because there is simply no ‘freedom’ to spread Covid-19 to take away. If we could be certain who had the virus at any given time, we could isolate them and leave the uninfected to do as they please. In this, however, there is a crucial difference between the smoker and the ‘vector’: everyone, including the smoker, knows he smokes, whereas people with Covid-19 may be asymptomatic, and our testing regime is not fast enough to confirm every case in real time. Otherwise, we might be safe obliging only people with Covid-19 symptoms or a diagnosis to wear masks. But to account for uncertainty over who actually poses a risk to others, we need to oblige everyone to wear a mask. This approach is inevitably over-inclusive: many people who do not have the virus will have some freedom taken away.

 

The uncertainty does not arise for smoking. One cannot secretly nor accidentally blow smoke in someone’s face. Uncertainty does, however, arise in respect of speeding. Not because we do not know who is speeding and who is not: we have speedometers and radar guns to detect the speed of cars. Rather, the uncertainty arises in respect of the harm of speeding. Some drivers are better than others, and safer when travelling at speed. The risk to pedestrians, cyclists, and other drivers of an average driver driving fast is significantly greater than that of Lewis Hamilton driving fast. If our goal is safety for other road users, that might well justify limiting many drivers to 50km/h; but it might only justify limiting Lewis Hamilton to 80km/h. Ordinarily, we might consider Lewis Hamilton (but not an average driver) to be free to drive about at 80km/h, because he won’t pose the same danger to others as most do when driving at the same speed. A common speed limit is over-inclusive.

 

Epistemic uncertainty nevertheless demands a common speed limit, for several reasons. First, predictability: pedestrians, cyclists and other drivers do not know whether it is Lewis Hamilton behind the wheel, so they cannot know what speed the driver is likely to be safe travelling at and adjust their behaviour accordingly. Second, efficiency: the police do not know whether it Lewis Hamilton driving when they pull him over, and it is much easier to prosecute a strict liability offence of speeding than an offence of ‘driving at an unsafe speed’ subject to a defence of ‘being a safe driver at high speeds’. Third, individuals might overestimate how safe a driver they are, leading them to unintentionally drive at unsafe speeds. We know that nobody wants to die in a car crash, nor to kill anyone else on the road. However, people’s ability to protect themselves and others is compromised by uncertainty (how safe other drivers are at speed, and what speed is safe for themselves to drive at) – so we need the same speed limit for everyone. Likewise, nobody wants to catch Covid-19 nor give it to anyone else, but unless everyone is wearing masks they cannot reliably know how to accomplish these goals.

 

The speeder and the smoker are not ‘sensible knaves’. Unlike the unvaccinated person in a population with herd immunity, they are not actually free-riding off anything. The non-masker is: he won’t catch the virus so long as everyone else is wearing a mask. However, Prof Green’s objection to his free-riding might not be enough on its own to justify restricting his freedom. It may also be hard to convince the non-masker that he should care more about protecting himself from Covid-19 than about missing out on the pub, or the discomfort of wearing a mask – the line we take with drivers over seatbelts. We might disagree with the person who values his freedom to drink in a pub or walk about unmasked above his own health, and think he is very silly to feel that way. But our real worry is about the fact that he values his freedom to do this above the health (ie, freedom from the virus) of others. Our disagreement with the non-masker, therefore, is not simply about which freedoms ‘are, in the end, not really that valuable’, but also about whose. Our strategy should therefore mirror the approach of speed limits and smoking bans – if you want to crash into a wall or get lung cancer, that’s your business… but if you pose a danger to others, it becomes ours.

 

Alan Eustace is a PhD candidate at the School of Law, Trinity College Dublin, and a member of the Covid-19 Law and Human Rights Observatory. Alastair Richardson is a student at the Inns of Court College of Advocacy.

 

Suggested citation: Alan Eustace and Alastair Richardson, ‘Freedom in the Pandemic: Seatbelts, Speed Limits, and Smoking Bans’ COVID-19 Law and Human Rights Observatory Blog (6 August 2020) https://tcdlaw.blogspot.com/2020/08/freedom-in-pandemic-seatbelts-speed.html

Return to home page of the COVID-19 Law and Human Rights Observatory. 

COVID-19 and the Funerals in Ireland: A Strange New Normal

Heather Conway, Queen’s University Belfast

 

Coping with a different way of life is not the only challenge that we have faced in recent months. The global pandemic that is COVID-19 has aggressively dismantled our way of death as well.

 

Both the practicalities and the social consequences of dealing with the dead have had to be addressed by countries worldwide as part of the COVID-19 planning process, and Ireland was no exception. The government quickly amended the rules around registering deaths, allowing certification by registered nurses and paramedics to ease pressures on the medical profession and allow funerals to go ahead. Plans were also made for temporary morgues and enhanced burial and cremation capacity, to ensure that local systems did not become overwhelmed when the anticipated surge came, as they had in the Italian city of Bergamo when its only crematorium could no longer cope and bodies had to be transported elsewhere. However, one of the most striking features of the emergency provisions was the restrictions imposed on funerals. These are ingrained social rituals in Ireland, as families, friends and communities come together to bid farewell to the dead and provide vital emotional support to those who have been bereaved. Like so many things, COVID-19 has changed all that.

 

The law’s treatment of human remains has always been based on two things: respect for the dead, and public health concerns around decaying bodies. The first speaks to basic notions of human dignity. The second speaks to the threat of disease: the dead must be separated from the living. In pandemics the balance shifts firmly to public health. When we think about COVID-19, the messaging is all about washing hands, social distancing, self-isolating etc., but this public health narrative also extends to the dead. Dead bodies are potential contaminants, and protocols have been put in place worldwide for handling those who died with confirmed or suspected COVID-19. We see the practical outworkings in funeral directors wearing protective clothing; bodies being placed in closed coffins; families unable to see their loved ones one last time. Yet it’s not just the danger of the dead contaminating the living that raises public health concerns. Major restrictions were imposed on all funerals (both virus and non-virus deaths) to curb the risk of person-to-person transmission among the living as people gathered in typically large numbers for Irish wakes and funerals. This public health risk drove the widespread legal restrictions that were imposed in March, and with good reason: 6 people reportedly died from COVID-19 after attending the same funeral in South Carolina, and over 40 new infections occurred in a village on the Eastern Cape of South Africa when mourners congregated for a large funeral.

 

Funerals (unlike weddings) could still go ahead in Ireland when the pandemic took hold, as the government tried to perform its delicate balancing act of curbing the spread of COVID-19, while allowing families to cremate or bury to their dead in a dignified and respectful manner. In keeping with restrictions on movement, prohibitions on gatherings and social distancing rules (all core elements of lockdown strategies worldwide), major constraints were imposed on funeral attendance and participation in Ireland. The government stopped short of banning families from attending, no doubt mindful of the public outcry that greeted a suggestion to this effect by the Irish Association of Funeral Directors. Instead, attendance at funerals was strictly limited to what was initially a maximum of 10 people with social distancing maintained at all times to protect not just mourners but funeral directors, officiants, and crematoria and cemetery staff who have played such a vital- if sometimes overlooked- role during the pandemic. And, as the weeks have progressed and the R rate has dropped, allowing legal restrictions to ease, permitted numbers at funerals have increased- though these are still technically confined to members of the deceased’s household, close family members and close friends. Permitted numbers for indoor and outdoor gatherings should be borne in mind as the government moves through the different phases of its roadmap. Although Phase 3 guidance mentioned a maximum of 50 people attending funeral homes or any ceremony, some confusion remains. For example, even after legal restrictions on the holding of religious services were lifted on 8 June 2020, churches have continued to apply restrictions on numbers and social distancing, marking a very significant change from how funerals have been traditionally practised.

 

Of course, the same basic problems persist. At a time of intense emotional distress, how do grieving relatives decide who goes to the funeral, and who does not; and on what basis are these decisions made? Funerals are important social rituals that mark the life of the deceased; they allow family and friends to come together to remember and to mourn their loss, while drawing social support from members of the community who gather to pay their respects. For those who have been denied the basic right to say a ‘proper’ goodbye to their dead since the pandemic began in Ireland, what will the longer-term impact be?

 

To reiterate, the public health imperative dominates here- though what we also need to acknowledge is that, when governments talk about protecting public health in pandemics, they essentially mean ‘physical health’. In one sense, allowing funerals to go ahead recognises that this is vital for the mental health and wellbeing of the bereaved. Yet the emotional impact of altered funeral formats on the living is horrendous, and has already been highlighted by bereavement charities. Closed coffins prevent families from seeing a loved one who may have died alone in hospital or a care home, and who is now quarantined in death as well; and the wider social support that funerals provide- such an important part of the grieving process- is also lost when funerals are restricted to such small numbers. There’s no wake, no viewing of the deceased, no comforting hugs or handshakes at funerals, no post-funeral gathering: all such ingrained parts of our socio-cultural fabric in Ireland, and basic things that the bereaved rely on as part of their emotional support and coping strategies. Some adaptations have been made, to allow remote participation. We have seen a significant increase in live-streaming of funerals, something that demonstrates how technology enables us to stay together when virus-induced legal restrictions force us to stay apart. Yet many people still feel that it is not the same as physically being there, to pay their respects in person.

 

Every society prides itself on how it treats its dead, but COVID-19 has forced us into strange new types of funerals and new ways of behaving at funerals. Repeated government advice is that social distancing will be with us for some time, and that stricter controls may have to be reintroduced if infection rates increase and a dreaded second wave of COVID-19 emerges in the months ahead. It could be some time away, but one suspects that the traditional Irish funeral is one of the many things that people will embrace again, when they finally emerge from living and dying in the shadow of COVID-19. Until then, the final words of latest government guide for the bereaved seem pertinent:

 

In time this pandemic will pass. In time life will return to normal… Until then, we will all have to continue to say goodbye to our loved ones in different, difficult and, in many respects, unsatisfactory but essential ways.

 

Professor Heather Conway is Professor of Property Law and Death Studies at the School of Law, Queen’s University Belfast. She has author of The Law and the Dead (Routledge, 2016), has written extensively on family funeral disputes, and is a Council Member and trustee of The Cremation Society.

 

Suggested citation: Heather Conway, ‘COVID-19 and the Funerals in Ireland: A Strange New Normal’ COVID-19 Law and Human Rights Observatory Blog (3 August 2020)

 

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